Criticisms of the current scope of RC

10.47 A number of criticisms have been made of aspects of the RC classification in the academic literature—for example, in respect of the ambiguity of the terms and concepts used;^[68] concerns about the community standards basis;^[69] as well as concerns about overly restricting speech^[70] (including in respect of the proposed mandatory internet service level filter);^[71] and particular concerns about s 9A.^[72] A number of submissions to this Inquiry made similar criticisms.

10.48 In the Issues Paper the ALRC asked:

• what content, if any, should be entirely prohibited online;^[73] and

• whether the current scope of the RC category reflects the content that should be prohibited online.^[74]

10.49 These questions were directed to consideration of what content should be the subject of the Government’s proposed mandatory ISP-level filter. Submissions diverged in respect of the first question. Some submissions responded that no content should be censored online by way of a classification system^[75] and, rather, that individuals, including parents, should decide what media content they and their children consume. However, there were also many submissions that accepted the need for a classification such as RC to encompass certain content such as child sexual abuse content, as many considered that such content should be prohibited online.^[76]

10.50 It should be noted that many submissions responding to these two questions commented on the current scope of RC in general, not simply in respect to whether such material should be prohibited online. Comments directed to the RC category more broadly are also discussed in this chapter. In part this is because a number of submissions argued for parity of treatment—that is, platform neutrality—between the classification category online and offline.^[77]

10.51 Some submissions supported the scope of the current RC category. However, there were many submissions that were critical of the scope; some even suggested abolishing the category.^[78] A number of submissions considered that the current criteria for RC are broad^[79] and/or ambiguous.^[80] Some thought it was unclear whom the classification is protecting, from what, and why.^[81] Finally, a number expressed specific concerns about the current scope. For example, a very large number of submissions called for the introduction of an R 18+ classification for computer games. Generally the discussion of the scope of the RC category in most of these submissions was focused solely on the fact that the absence of an R 18+ classification for computer games meant that a number of games are being classified RC that should be accessible to adult gamers.

The breadth of the current scope of RC

10.52 There were a number of submissions that suggested that the current scope of RC was appropriate because the content currently within the scope of the RC classification should be entirely prohibited online.^[82] For example, the Uniting Church in Australia’s Justice and International Mission Unit commented that it ‘supports the existing definition of RC as adequately setting boundaries around what content should be entirely prohibited online’.^[83]

10.53 Some thought that more than RC content should be prohibited online.^[84] For example, the Family Council of Victoria Inc thought that ‘[a]ll content in today’s X18+ category for films and above’ should be prohibited online.^[85]

10.54 Overall however, most submissions to the Inquiry remarked on the breadth of the current scope of RC, with some remarking that it is overly broad.^[86] For example, Kimberlee Weatherall, from the TC Beirne School of Law of the University of Queensland, submitted:

[T]he material [that] could feasibly be deemed RC includes material that may have social value, and which ought to be protected as free expression (in some cases political expression)

• A site devoted to debating the merits of euthanasia in which some participants exchanged information about actual euthanasia practices.

• A site set up by a community organisation to promote harm minimisation in recreational drug use.

• A site designed to give a safe space for young gay and lesbians to meet and discuss their sexuality in which some members of the community narrated explicit sexual experiences.

• A site that included dialogue and excerpts from literary classic[s] such as Nabokov’s Lolita or sociological studies into sexual experiences, such as Dr Alfred Kinsey’s famous Adult Sexual Behaviour in the Human Male.

• A site devoted to discussing the geo-political causes of terrorism that published material outlining the views of terrorist organisations as reference material.^[87]

The purpose of classification

10.55 In 1991, the ALRC stated that classification is done for the purpose of controlling dissemination—not for the purpose of controlling what a person may possess in their home.^[88] The New South Wales Council for Civil Liberties observed that:

The current classification system requires that items are classified first, and then distribution is done appropriately to the level of classification. The mindset which led to this approach is ill-suited to the Internet.^[89]

10.56 Similarly, Chris Berg and Tim Wilson of the Institute of Public Affairs remarked that ‘[t]echnological developments have already undermined the basis of classification in Australia’.^[90]

10.57 Indeed, there appears to have been a shift in the rationale for classification since the ALRC’s 1991 report. For example, in early 2011 the Attorney-General’s Department stated that ‘[t]he aim of the classification process is to assist consumers to make informed choices’.^[91] Many submissions responded to the questions about the RC classification by commenting that the purpose of classification is to assist consumers to make informed choices about consumption of media content—not to censor.^[92] For example, Dr Cathy Cupitt, Jess Bridges and Elaine Kemp commented:

Protecting the community from offensive content should not come at the expense of censoring valuable works and already marginalised voices. Our objective should be to give people the information they need in order to choose online content safely, rather than focusing on censorship.^[93]

Prohibit what is ‘illegal to create or possess’

10.58 MLCS Management submitted that the interface between entertainment and criminal law ‘is a major flaw’ of the present classification cooperative scheme as

one of the reasons for banning content (refusing classification) is because it not only offends reasonable adults, but because it may in some way break the law. However, the prime reason for the NCS is to advise consumers about product suitability. There must be very clear and consistent linkages between any classification framework and other legislative schemes, such as criminal codes and customs regulations.^[94]

10.59 Dr Lyria Bennett Moses also commented on the problematic nature of the current RC classification in this respect, noting:

The RC category, as currently defined, contains two types of content:

(RC1) Content that has been internationally condemned, most obviously child pornography, and

(RC2) Content that cannot be sold in Australia.

Unlike RC1 content, RC2 content can be legally possessed in Australia … (except in Western Australia).^[95]

10.60 She submitted that ‘by giving RC1 material and RC2 material separate labels, censorship regulations can be better targeted’.^[96]

10.61 A number of submissions that argued for narrowing the scope of RC in general—not just online—relied upon the distinction between acts which are prima facie ‘legal’ and ‘illegal’,^[97] although it was not always clear what was meant by the distinction. However, some submissions were quite clear: content depicting real acts that are legal to do should not be prohibited whereas content depicting real—as opposed to fictional—acts that are illegal to do should be prohibited, unless part of an educational or news report.^[98] A number of respondents argued that to warrant prohibition online or an RC classification, the content must cause harm.^[99]

10.62 Dr Nicolas Suzor was of the view that ‘[o]nly material that is illegal to possess should be entirely prohibited online’.^[100] Other submissions explained that the content which should be entirely prohibited online should be that which is ‘illegal to create or possess’—child sexual abuse material being an often-mentioned example.^[101] Amy Hightower and others submitted:

The only content that should be entirely prohibited online is those that required the commission of certain illegal acts to produce, such as child abuse material, and do not have any artistic, literary, academic, historic or newsworthiness value.^[102]

10.63 Google also acknowledged that

government intervention is appropriate when it comes to the prevention of child abuse material, primarily through direct law enforcement action and by working co-operatively with industry and governments in other jurisdictions to eradicate this material. Google agrees that there is an in-principle justification for government prohibition of this kind of material (subject to an effective safe harbour for network and platform providers). Google has a global all-product ban on child pornography, which is illegal in almost every country.^[103]

10.64 However, some submissions queried the utility of prohibiting such online content by way of ISP-level filters,^[104] or even a classification system.^[105] For example, while Irene Graham considered that child sexual abuse material should be entirely prohibited online, she submitted that

there is a difference between what content should be illegal to make available and/or access online, and what content should be on a secret blacklist and ‘blocked’ by ISPs … [N]o government can be trusted not to abuse secret censorship powers and secret censorship is incompatible with democracy.^[106]

10.65 Amy Hightower and others argued that ‘media classification is not the appropriate tool for prohibition; such material is better handled through law enforcement agencies than media classifiers’.^[107] Some submissions instead called for appropriate resourcing of the enforcement of such criminal laws.^[108]

General and specific concerns about the current scope of RC

10.66 A number of submissions expressed concern about aspects of the scope of the RC classification. Some of these comments were aimed at specific elements, for example items 1(c) and (d), as well as s 9A. Other comments were aimed at the problematic concept of community standards and offensiveness; that is, impliedly directed at item 1(a). Some comments cannot be so easily assigned to a respective item of the Code tables. For example, the Internet Industry Association’s comment was directed to reform of the scope more broadly:

the refused classification category should be reviewed to ensure that educational, news, scientific medical and political material is not included. We think this is important to the proper flow of information in our society and to ensure that free speech is possible online without risk of restriction.^[109]

Community standards and offensiveness

10.67 A number of submissions expressed concern about the notion that media content may offend community standards.^[110] Some submissions were concerned about the subjective nature of determining a ‘community standard’^[111] and noted that such standards will vary across communities^[112] (including online communities)^[113] and, further, are likely to change over time.^[114] For example, the Arts Law Centre of Australia commented that:

The difficulty for many people in the arts and broader community is not with the prohibition on material which is illegal under the criminal laws, but the much broader category of ‘offensive’ materials. An agreed upon ‘community standard of morality, decency and propriety’ is inherently subjective and will differ enormously across communities.^[115]

10.68 Some respondents submitted that the current standards that are determined to be reflective of the community may be unduly narrow.^[116] For example, Pirate Party Australia submitted that ‘[t]he current scope of RC does not reflect the attitudes and morals of today’s society’.^[117] It argued that

the ban on bondage (BDSM) pornography, between willing participants, does not match community standards, where there are shops, groups and even night-clubs that cater to people who enjoy BDSM as part of their sex life.^[118]

10.69 A number of submissions were directed at the propriety of one group’s views being able to trump those of others. While some questioned the propriety of media content being ‘banned’ because a majority determined it to be offensive (even though an individual’s access would have no adverse impact on the rest of the community;^[119] so, item 1(b) is clearly excluded), others advocated a community standard of public decency.^[120]

10.70 Another point to arise was possible censorship—in a political sense—which is not warranted. The NSW Council for Civil Liberties warned:

Governments should not misuse classification to focus on areas which clamorous minorities consider dangerous, but where there is no proof, or which in fact are not.^[121]

10.71 Given the number of submissions that expressed concern about whether the classification criteria for RC accurately reflect current community standards, it is apt to recall that earlier in this Discussion Paper, at Proposal 9–5, the ALRC proposed that a comprehensive review of community standards in Australia towards media content should be commissioned, combining both quantitative and qualitative methodologies, and with a broad reach across the Australian community. The ALRC proposed that such a review should be undertaken at least every five years.

Criticisms of item 1(c) content

10.72 A number of submissions were critical of the current breadth of item 1(c) of the Code.^[122] For example, Weatherall noted that there is an ‘extraordinary range of activities that are proscribed by criminal provisions in Australian law’ so the content that may come within item 1(c) is ‘potentially extremely broad’.^[123]

10.73 Graham submitted that item 1(c) had been used to make ‘highly publicly controversial RC decisions’ and referred to the decisions noted above in respect of the edition of Rabelais, The Peaceful Pill Handbook, as well as a decision on a computer game entitled Marc Ecko’s Getting Up: Contents Under Pressure—which ‘provided elements of promotion of the crime of graffiti’.^[124]

10.74 Some submissions were critical of item 1(c) of the Code as it relates to drug use.^[125] The National Drug Research Institute, Curtin University for example called for consideration of the scope of RC from a public health perspective: ‘specifically, to reconsider the rationale behind including “detailed instruction in drug use” in the definition of refused classification’.^[126] It explained that almost all of the respondents in one of its studies had participated in online drug discussion for the purpose of reducing the risks of drug use and preventing harmful outcomes.^[127] It observed that the most popular drug websites were not hosted in, or otherwise connected with, Australia, so were ‘not currently affected by Australia’s classification system’ but would be likely to be refused classification under the proposed mandatory ISP-level filter.^[128] It concluded:

Blocking websites where people discuss drug use in detail will … hamper the efforts of health, social and law enforcement officers to monitor drug users and to produce interventions that are responsive to new drug trends. …

Simply refusing classification of sites which contain ‘detailed instruction in drug use’ will ignore the complexity of balancing the potential negative and positive consequences of such websites. …

It would be unfortunate if well-intentioned policy changes inadvertently increased harm by decreasing access to websites that may assist in reducing harm for individuals and the whole community.^[129]

10.75 Google also expressed concern about the prohibition of this content:

When it comes to a broader class of controversial material, such as material dealing with safer drug use or material dealing with euthanasia, which is not universally recognised as illegal, Google submits that government prohibition is inappropriate.^[130]

10.76 It observed that:

in July 2008, the print edition of The Peaceful Pill Handbook by Dr Philip Nitschke was listed No 66 on the Amazon.com global Bestseller List. This same edition is banned in Australia. A censored version of the book was approved for publication in New Zealand in June 2008.^[131]

10.77 Other submissions were also critical of the prohibition of media content relating to euthanasia.^[132] However, some submissions considered that media content which promotes or provides instruction in suicide should be prohibited.^[133] For example, the Hunter Institute of Mental Health submitted:

Given the potential risks to those who are vulnerable, we believe that any material (online or otherwise) that is explicitly pro-suicide and provides information or access to means of suicide should be prohibited. While some may conceive this as a restriction of freedom of speech, it does pose a real risk to those who are vulnerable and desperate.^[134]

Criticism of s 9A

10.78 While the Music Council of Australia noted the debate about a chilling effect that accompanied ‘Anti-Terrorism legislation’,^[135] other submissions were more vocal in their criticism of s 9A of the Classification Act.^[136] For example, the Australian Society of Authors submitted that the provision should be repealed,

because it fails the most elementary test of censorship—certainty of application. Because no one knows precisely what it prohibits, it inescapably catches material that is beyond the ambit of censorship.^[137]

Criticism of item 1(d)

10.79 As noted, a large number of submissions criticised 1(d) of the Code table relating to computer games. As SCAG ministers have recently agreed to introduce an R 18+ classification for computer games it is unnecessary to describe the criticism of item 1(d) in this chapter.